¶1(dissenting).
¶2For the first time, I find myself in the minority in the decisions of this court. As I read the evidence in this case, there is not a shred of testimony in the entire record which could, by any possibility of construction, authorize the jury in believing that this defendant was guilty of manslaughter. The issue is sharply defined by the evidence in the case, the circumstantial evidence for the state showing a rather weak.case of murder; but, if believed, it would have justified the jury in rendering a verdict against the defendant for that crime. The evidence for the defendant shows, without question that he was justified in. slaying the deceased. This being the state of the record, I think the instruction given by the court at the request of the state was unwarranted, and *145undoubtedly prejudiced the accused. The instruction authorized a compromise, which was unsupported by either the evidence of the state, or the defendant, or the evidence as a whole.
¶3The opinion of the court says: “If the jury believed only the testimony introduced by the state, they could have found appellant guilty of murder. On the other hand, if they believed only the testimony for the defense, they could have acquitted him.” The only objection to this language is: The court, in my opinion, should have employed the word “should” instead of “could.” The last pronouncement of this court upon the precise question here involved reads as follows: “The instruction authorizing the jury to convict the defendant of manslaughter was vicious in the extreme, when applied to a case like the one under review. There is no halfway ground here; no debatable question, except the defendant’s guilt or innocence of the crime of murder. To advise the jury that they could compose their differences and doubts, if any they had, by finding the defendant guilty of a lesser crime, without evidence to support the verdict, is unfair to defendant and manifest error.” Parker v. State, 58 South. 978.
¶4The quotation from this opinion was announced to be the law in this state July 1, 1912, and; without expressly overruling this case, I am unable to see how the present case can be affirmed. If, without the advice of the court, the jury should have returned a verdict of manslaughter, it might be argued from the evidence that defendant had no right to complain; but in my opinion, in a case like the one under review, the jury will usually compromise their differences and render a verdict for the lesser crime, if the instructions authorize such verdict, and this cannot be tolerated by the court-without overthrowing the well-settled law of this state.